SCO Daily: Plea for Marriage Equality: Day 8

As the arguments in the plea for marriage equality reach the finish line, the Bench deliberates if there is a fundamental right to marry.


Day 8 of the plea for marriage equality for LGBTQIA+ persons concluded today.

Taking a step back from the issue of same-sex marriage, the Bench today pondered over a broader question: Does a fundamental right to marry exist? 

Sr. Adv. Rakesh Dwivedi, for Madhya Pradesh, responded in the negative. According to him, marriage flows out of custom, personal law, and religion—all of which only recognise heterosexual marriages. He reasoned that heterosexual marriage was essential for society to perpetuate itself. Homosexual unions do not meet this purpose.

Sr. Adv. Kapil Sibal adopted a different approach. The primary questions the Bench must consider, he pointed out, were two: First, is there a right to sexual union? And second, is there a right to have this union legally recognised by law? He argued that while there was no dispute that a right to sexual union exists, the right to legal recognition of these unions is a matter for legislative consideration. Should the Court choose to read in queer marriages under the Special Marriage Act, a law not intended for this purpose, Parliament would be barred from debating this issue. The societal implications of marriage require essential social discourse and an organic evolution of law, which the SC must not block. 

Mr. Sibal went on to argue that heterosexual and non-heterosexual couples were separate classes of people. Different instances flow from heterosexual and non-heterosexual marriages. To treat two unequal classes of people equally would defeat the purpose of Article 14. If non-heterosexual marriages must be legally recognised, then Parliament must do so in the same manner it made law for transgender persons. 

Finally, tracing the evolution of the SMA, Sr. Adv. Arvind Datar stated that this Act was enacted in 1954 to recognise inter-caste and inter-religious marriages. Therefore, the petitioners could not challenge the Act today on the ground that it violates constitutional principles because it did not include non-heterosexual persons. 

The Bench was expected to receive updates on the potential administrative ‘tweaks’ to grant certain ancillary rights to queer couples over the weekend. However, there was no update on this front. The Bench is expected to conclude tomorrow. Stay tuned to SCObserver for detailed reports and updates from the Supreme Court.